To require Congress to negotiate in public is to ban certain communications among Members of Congress.

There’s a growing sense that real legislative negotiations should be public.

C-SPAN made such a call last week, and the Society of Professional Journalists has now called for public access to health care negotiations.

These two efforts follow Representative Vern Buchanan’s bill introduced in October, H.Res. 847, a sense of the House resolution calling for open health care deliberations.

While each of these requests has slightly different wording, their goal is similar — taking aim at the real sausage-making — the trading, haggling, prodding, and arguing, the consensus-making, elbow-throwing, backstabbing stuff of legislative power. Were that aspect of Congress to be public, the institution would be change significantly, to say the least. How, though, can it be required to be public?

As we have examined before, requiring formal conference committee proceedings wouldn’t get us there. We’ve also noted that moving away from a publicly deliberative processes (like Conference Committees) is what’s to be expected of a Congress where parties and leadership enjoy concentrated power, and that this transformation will have complex effects on transparency.

How, then, can we require Congress to truly negotiate in public?

Each of these calls has a similar request — Rep. Buchanan’s that “any conference committee or other meetings [regarding healthcare] …be held in full public view and not behind closed doors,” SPJ‘s that Congress “reconcile differences between health care bills” by “televis[ing] the negotiations live,” and C-SPAN’s that Congress “open all important negotiations, including any conference committee meetings, to electronic media coverage.”

These each sound good in theory. Imagine, though, that you were responsible for implementing these suggestions. How could they be fulfilled?

If you were the Speaker, or the Chair of a committee, how could you implement this requirement? You could easily set up an event, invite the media, and discuss healthcare. You could even set up an agenda pertaining to reconciling the health care bill. This doesn’t guarantee though, that the real negotiations get broadcast — it doesn’t get us to “all important negotiations,” to use C-SPAN’s formulation. It doesn’t keep Members from reading prepared statements while their staffers negotiate in private, and it doesn’t compel Members not to email or call each other after the meeting ends. It doesn’t keep Members from plotting their own new approaches to health care, or, for that matter, it doesn’t keep Members from plotting in secret to kill the health care bill.

What requirement could?

The only way I can think of to require that the real health care negotiations be public would be to put a ban on certain communications between Members of Congress. You could try to say, for example, that no Member of Congress can communicate with any other about health care, with the exception of a room wired for video. Then, if they wanted to negotiate, Members would have to do so in public. Somewhat similar provisions exist for the FCC, for example, as well as some other legislatures.

Would they be appropriate for Congress?

Any requirement that Members of Congress be forbidden to communicate with each other, under any circumstances, isn’t likely to get far.

Would the ban apply to staffers? Only to verbal communications, or to email and phone calls too?

How would constituents respond to seeing their Member’s speech being restricted?

Wouldn’t allowing speech restrictions on Members possibly empower the Majority party, and weaken the Minority, or at least alter power in an unpredictable, possibly harmful way? In other words, wouldn’t a requirement for public deliberations also apply to private conversations among Minority party Members?

What about the Speech or Debate Clause of the Constitution?

You can only require something to be public if it’s defined. Bills, laws, executive orders, financial disclosure, earmarks — part of making each of these things public has been to define them. Speech from Members of Congress is among the very hardest of things to define narrowly and well. Inhibiting Congress’s ability to act is dangerous, and inhibiting Congress’s ability to speak freely shouldn’t be undertaken lightly.

As long as: (1) each Chamber of Congress can set (and waive) its own Rules, and (2) as long as a bill becomes law if it’s passed identically in both Chambers, and (3) as long as political parties have a strong electoral interest in moving a legislative agenda, then we can expect legislative wrangling to continue behind closed doors, unless a Congressional speech restriction is enacted.

Calls for legislative transparency aren’t misplaced, and are certainly a rational response as we watch critical and enormous issues being reconciled away from the gaze of public accountability. We should also, however, have a realistic understanding of what it would take to force the real deal-making of Congress into the public eye.